Abstract

Law and the Unconscious: A Psychoanalytic Perspective (Yale Press, 2017) argues for the vital relevance of contemporary psychoanalysis to law, legal theory, and judging. Our legal system is predicated on the idea that people act rationally and of their own free will. Yet this presumption of rationality fails to explain the many puzzles that arise in law and addressed in this book: Why would an individual confess to a crime she did not commit? What motivates an individual to enter into a prenuptial agreement against his own interest? Why should we prohibit incestuous sexual relations between consenting adults? Why would a victim of domestic violence stay with his abuser? What prevents an individual from changing when confronted with evidence of her own racial bias?

Contemporary psychoanalysis draws our attention to the hidden, conflicted, wishful, sometimes self-destructive aspects of our inner selves that can produce inexplicable decision making and irrational behavior. In Law and the Unconscious, we discover how the gap between the lived reality of subjective experience and the law’s false portrait of the human mind can lead to ineffective, unrealistic and unjust legal rules and outcomes. After setting forth the history and conceptual foundations of the field of law and psychoanalysis, this book argues that contemporary psychoanalysis provides a solid clinical foundation for refining and redefining legal theory, rules, and judging. While contemporary psychoanalysis is rooted in clinical work and research, there are important intersections between this book and the work being done in behavioral legal studies. At the crossroads of psychology and the law, Law and the Unconscious challenges basic legal assumptions about the autonomous, rational actor, offering a nuanced and humane perspective that furthers our legal system’s highest ideals of individual fairness and systemic justice.

Dailey, Anne C., Law and the Unconscious: A Psychoanalytic Perspective (November 4, 2017). Law and the Unconscious: A Psychoanalytic Perspective, Yale University Press (2017). Available at SSRN: https://ssrn.com/abstract=3065072

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